Monday, March 08, 2010

Kitniyot and Stimulants: Coffee and Marijuana on Passover

Kitniyot and Stimulants: Coffee and Marijuana on Passover

One of the more interesting customs for Pesach in that of refraining from kitniyot. There is much discussion regarding the origins of this mysterious custom. That is, the exact time this custom began, as well as it initial rationale is cloaked in mystery. That is not to say that numerous reasons haven't been offered, only that we probably will never know for certain why this was enacted. Moreover, what exactly is encompassed in this custom is similarly cloaked in mystery. We have food items running the gamut. Aside from the standard fare of rice, we have those prohibiting such seemingly odd foods as garlic and carrots. Thus, it should come as no surprise that many have included foods that there is no legitimate reason for doing so. Indeed, as we shall see, in some instances the foods in question are prohibited although it is clear that the persons prohibiting them have no idea what exactly the foods are. This hearkens to the idea espoused by Dr. Daniel Sperber, discussed in this article, and expanded upon in this book, that if one understanding of history, bibliography and other relevant areas is lacking this may lead one to make grievous errors in halakhic matters. In this post we will deal with two foods, both of which were prohibited under the rubric of kitniyot, and, apparently, those who made these decisions were unaware of the actual characteristics of the foods in question. The two items we shall deal with are coffee and cannabis (hemp, hemp seed, and marijuana). [Our discussion below is with the recognition that one must always comply with all relevant federal and state laws and we limit our discussion to what position Jewish law takes regarding this topic.]

Coffee

Coffee was introduced to Western Europe in the 17th century. [See David Liss's excellent fictionalized account of the burgeoning coffee trade in Jewish Amsterdam, The Coffee Trader. (Avner Gold has an Artscroll book, A Scandal in Amsterdam, that uses much of the same material, one wonders if it was "influenced" by Liss's book.)] With its introduction, some rabbis began dealing with its halakhic status, which blessing is required and, as relevant here, whether it is permissible on Passover. R. Ya'akov Reischer (1670-1733), in his Shevut Ya'akov (vol. 2 no. 5), deals with both these questions. Regarding the first, he holds a shehakol is the correct blessing. Regarding the issue of Passover, he permits coffee. He is skeptical that coffee would be considered kitniyot because "he has been told" that coffee is grown on trees, and whatever one may think about the scope of kitniyot, it does not encompass tree fruits. But, R. Reischer hedges a bit and notes that even if coffee would be deemed kitniyot, as coffee is roasted, or, as he refers to it "burnt prior to Passover" this renders coffee unfit for even a dog and permissible on Passover.

R. Yosef b. David of Breslau, in Hok Yosef (no. 457, first published in 1730), however, disagrees. He first questions the argument regarding roasting or burning the beans and notes that the roasting process is an integral part of coffee process. More fundamentally, he argues that indeed coffee is kitniyot. He notes that his father-in-law, R. Abraham Broda, similarly held that coffee is kitniyot and prohibited.

R. Hayyim Yosef David Azulai (HIDA), disputes this holding in very strong terms. HIDA explains (Shu"t Tov Eyin, no. 8) that these rabbis "should be forgiven [for holding coffee is prohibited as kitniyot] because coffee is the fruit of a tree." Regarding this classification HIDA is not speaking from second hand accounts like R. Reischer, rather HIDA notes that "a few years ago I saw a coffee tree in Amsterdam in the botanical gardens, as well as in Pisa and thus there is no reason to be strict regarding coffee." HIDA in his travelogue describes in detail his visit to the Amsterdam botanical gardens, Hortus Medicus. On the 18th of Iyar, 1778, in the afternoon, HIDA went to the gardens. He says "that these gardens are truly indescribable they are so beautiful, all the plants and grasses are in rows, and everything is so clean, it is a testament to human intelligence. Every plant is labeled. There are plants from America, Portugal and Turkey all in rows according their nationalities. The wall have holes where fires can be lit to control the temperature of the gardens and ensure that the plants can survive even in the cold climate of Amsterdam. Among the plants I saw was the coffee plant." (Ma'agel Tov ha-Shalem p. 150-51 ) While HIDA is unwilling to accede that these rabbis were completely unaware that coffee is tree fruit, it begs the question what those who prohibit coffee were thinking in considering coffee kitniyot.

It is not only those who prohibit coffee who seem to be unaware of exactly what they are discussing. More recently, R. Yitzhak Isa'ak Weiss (1875-1944), one of the Spinka Rebbis, discusses "two" types of coffee, one grown on trees and the other grown "in gardens." He ultimately holds that both types of coffee are permitted, but the issue is that coffee always grows on tress. There are two major types of coffee, arabica and robusta, both of which grow on trees. Perhaps what R. Weiss is discussing is another type of coffee - one that was commonly substituted for coffee - but is not in fact coffee. The common substitute, which has its own history and own halakhic issues, is chicory. [See. R. Y. Goldhaver's excellent articles regarding chicory and its treatment under Jewish law in Yeshurun 19:792-834, 20:839-864] Chicory is indeed a bush and not a tree and perhaps is what R. Weiss is discussing.

Today, for most (with Passover, one can almost always find a group that prohibits something) coffee is not deemed kitniyot and is Kosher for Passover. Indeed, one of the more common haggadot is the one produced by the Maxwell House Coffee company. One scholar has commented on this phenomenon: "As always, entrepreneurs, Jewish and otherwise, capitalized on wives' and mothers' desires to have just the right foods on the table for Passover, that longest standing of traditions. Maxwell House coffee, reportedly, caused a stir at many seder meals when it introduced a new 'tradition' of drinking coffee rather than tea at the end of the sumptuous holiday banquet. A decade or so later, the company would print its own Haggadah to insure a 'unique relationship between a product and a people." (Jeffrey S. Gurock, Orthodox Jews in America (Bloomington: Indiana University Press, 2009), p. 151.) Maxwell House even advertised in Yiddish in HaPardes: [Thanks to M. Butler for these two sources.]

Marijuana

In 2007, the Green Party in Israel made headlines in coming out that Ashkenzim should not smoke marijuana on Passover. There were articles from the Jerusalem Post on the topic as wellasotherpublications. Most are notable only in that how poor they are in substance. Indeed, another recent example can be found here. Although from reading these articles one may get the sense that rabbis haven't discussed the marijuana, indeed there is at least one responsa on cannabis, the plant from which marijuana is derived, and its status on Passover.

R. Yitzhak Ya'akov Weiss (1902-1989), in Shu"t Minhat Yitzhak (vol. 3 no. 138(b)), discusses cannabis on Passover. Specifically, he is dealing with two foods, cannabis and cotton-seed oil, but we will focus on cannabis. Prior to engaging in this discussion we should note that the cannabis plant produces three things: (1) hemp which is fibrous and can be used to make clothing, and was commonly used to make strong rope; (2) hemp seed, which is used in food and in some homeopathic remedies; and (3) as a narcotic referred to as marijuana. [See also Y. Felix, Marot ha-Mishna, Jerusalem: 1977, p. 131; and Z. Amar, "Hashish and the Hashishim in Eretz Yisrael and Syria During the Medieval Period," in Ariel 120 (1997), pp. 277-282 (he discusses, among other topics the band of assassins that are associated with the narcotic).] R. Weiss first notes that cannabis shouldn't be questionable at all for Passover as Rambam, in the laws of prohibited mixing of seeds, labels cannabis as a vegetable and not kitniyot. However, R. Weiss points out that there is an internal problem with the Rambam, one that many of commentaries on Rambam have dealt with, but not to R. Weiss's satisfaction. It should be noted that one commentary, Radbaz (1479-1589 or 1463-1573), in his discussion of this issue makes it apparent that he is aware of cannabis's narcotic use. He explains that "in Egypt they eat [smoke?] cannabis and become high and those who do report that it makes them very happy . . . in other places they use cannabis to make clothing like linen." Returning to the conflict in Rambam, R. Weiss's solution is that there is no conflict and instead Rambam is referring to two distinct plants both of which are called cannabis. He arrives at this conclusion by noting that cannabis is defined differently. Some define cannabis as a fiber and others refer to it as a food item. Thus, he concludes that there must be two different plants which share the same name. This conclusions is of course wrong. There are not two distinct plants but a single plant that has a variety of uses. [Additionally, it should be noted that R. Weiss "proves" his point by referencing a Mishna that contains nikkudot. He doesn't identify which edition he is referring to - Kehati or some other, but using such a source is highly questionable. The Kaufmann Mishna, one of the oldest examples of a nikkud mishna doesn't contain both mentions of cannabis in the Mishna and therefore it is impossible to determine if the nikkud follows that advocated by R. Weiss.]

R. Weiss, based upon his non-existent two plant types, concludes that hemp would be included in the prohibition of kitniyot. In so doing, R. Weiss provides yet another example of someone incorrectly categorizing a food based on lack of knowledge of the plant itself. In all events, this responsum of R. Weiss, even though it is incorrect, is not referred to in any of the above cited articles. Indeed, the Star-K reaches the opposite conclusion and lists hemp and hemp seed as permitted on Passover (so long as one ensures there are no errant grains mixed in). Thus, it appears that marijuana would equally be deemed non-kitniyot.

Even if one accepts that marijuana is kitniyot, there is another reason that smoking it on Passover would be permitted. This is so as R. Ya'akov Emden, (Mor u-Kitziya no. 511) discusses using tobacco on Passover where there is a fear that the tobacco may have been soaked in beer. R. Emden explains that using such tobacco poses no problem on Passover for many reasons. In fact, he is so sure that such tobacco is permitted he "would have announced that Jew can affirmatively soak his tobacco in beer prior to Passover, but for the fact that am haratzim would view this as wrong." [In part this sweeping permission is due to the fact that tobacco is inedible and thus immediately after the beer is mixed in it is no longer edible.] R. Emden concludes that he "remembers that his father [R. Tzvi Ashkenzi, Hakham Tzvi] used to laugh at those who displayed piety (mit-hassdim) and purchased Kosher for Passover tobacco." R. Emden's rationale applies with equal force to marijuana. In particular, R. Emden explains that smoking is merely deriving benefit and not considered ingesting the item in question. This is so even if one derives benefit through one's mouth. R. Emden goes further to allow one to use snuff where one is partially ingesting the tobacco. Thus, according to R. Emden, smoking something that contains hametz (beer) is not a problem, surely something that is kitniyot would pose no problem. Therefore, presuming one is smoking marijuana, this would be allowed on Passover even according to those who consider it kitniyot.

What is particularly surprising is that if one is resorting to Jewish law to determine the status of marijuana, this question is not limited to Passover. Indeed, irrespective of marijuana's status vis-à-vis Passover, various Rabbis have opined that using marijuana is always prohibited. For example, R. Moshe Feinstein (Shu"t Iggerot Moshe, Y"D vol. 3, no. 35) was asked about "the Yeshiva bochorim that have begun to smoke hashish (marijuana)" and if this is permissible. R. Feinstein replies unequivocally that according to Jewish law the practice is prohibited. Similarly, R. Shlomo Zalman Auerbach prohibits the use of marijuana. (Nishmat Avraham, O"H no. 155, no. 4) He also deals with the issue of if one is under the influence what is their halakhic status. (Shulchan Shelmo, Refuah, vol. 2, p. 223).

There is also a chapter on kitniyot in Mo'adim le-Simcha although there are some inaccuracies contained therein. Additionally, some of those inaccuaries are the same that appear in the early article in Minhag Yisrael Torah vol. 2 no. 457, thus providing yet another example of plagiarism on the Mo'adim le-Simcha's part.